Opinion
Civil Action 22 Civ. 1302 (JPC) (SLC)
12-21-2023
DAVID K. PORATH, Plaintiff, v. CITY OF NEW YORK, BELLEVUE MEN'S SHELTER SYSTEM, and N.Y.S. PAROLE OFFICER AKANEME, Defendants.
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE JOHN P. CRONAN, United States District Judge:
I. INTRODUCTION
Pro se Plaintiff David K. Porath (“Mr. Porath”) brings this action against Defendants the City of New York (the “City”), Bellevue Men's Shelter System (“Bellevue,” with the City, the “City Defendants”), and New York State Parole Officer Obumneme Akaneme (“Officer Akaneme”), asserting claims under 42 U.S.C. § 1983 (“Section 1983”) and New York State law arising from Defendants' alleged failure to correct Mr. Porath's erroneous classification in Bellevue's records as a “sex offender.” (ECF Nos. 1 (the “Complaint”); 14 (the “Amended Complaint”)). Mr. Porath alleges that the misclassification caused Bellevue to deny him entry and resulted in his incarceration for violating the conditions of his parole. (ECF No. 14 at 3, 5).
Defendants have moved to dismiss the Amended Complaint, with Officer Akaneme moving under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject jurisdiction and failure to state a claim, respectively, and the City Defendants moving under Rule 12(b)(6) only. (ECF Nos. 63; 61 (together, the “Motions”)).
For the reasons set forth below, the Court respectfully recommends that the Motions be GRANTED, and that Mr. Porath be granted leave to amend certain claims.
II. BACKGROUND
A. Factual Background
The following facts are drawn from the Amended Complaint and are presumed true for purposes of deciding the Motions. See Roth v. Jennings, 489 F.3d 499, 509-510 (2d Cir. 2007); Tatum v. City of New York, No. 19 Civ. 2581 (JPC), 2021 WL 4084181, at *1 (S.D.N.Y. Sept. 8, 2021).
All internal citations and quotation marks are omitted from case citations unless otherwise noted.
Mr. Porath “did time for burglary” and was released on parole before April 2020. (ECF No. 14 at 2). Following Mr. Porath's release, Officer Akaneme “directed [him] to go to [B]ellevue shelter on numerous occasions.” (Id.) At least seven times between April 2020 and November 2021, Bellevue's “intake” refused Mr. Porath entry “because [he] was listed as a ‘sex offender' in [Bellevue's] computer system” (the “Misclassification”), and told him that he “would have to go to Swarts Island[.]” (Id. at 3).Mr. Porath repeatedly informed Bellevue that he is “in fact not a sex offender” and, on at least two occasions, “even showed them parole papers stating the opposite of their computer records . . ., all to no avail.” (Id.) Mr. Porath also complained “numerous times” about the Misclassification to Officer Akaneme, who “did not believe” him and never “look[ed] into” it. (Id.) Bellevue and Officer Akaneme “refused to correct” this “gross negligent error[.]” (Id. at 4).
Mr. Porath appears to be referring to “[t]he Schwartz Assessment Shelter” (“Schwartz”), which “is a shelter for homeless men that is operated by [Volunteers of America] and located on Wards Island in New York City.” Jones v. Thomas, No. 20 Civ. 5581 (LLS), 2020 WL 5077026, at *1 (S.D.N.Y. Aug. 27, 2020); see https://www.voa-gny.org/emergency-shelter.
Mr. Porath “suffered [four] parole violations” for “refusing to comply with parole to go to Bellevue/Swarts Island as a sex offender[.]” (ECF No. 14 at 5, 7; see id. at 3 (Mr. Porath alleging that he incurred four “violations of incarceration [for] not going somewhere as a sex offender as directed”)). He alleges that, at a parole revocation hearing, he “stated [four] times . . . that he needs [a] new parole [officer,] that Bellevue has [him] down as a sex offender, and [that Officer Akaneme] is doing nothing to correct this[.]” (Id. at 5).
B. Procedural Background
On February 15, 2022, Mr. Porath filed the Complaint asserting claims under Section 1983 for defamation, slander, and “false accusations.” (ECF No. 2 at 2; see id. at 5 (Mr. Porath alleging that he “has a right to be free from being falsely accused and identified as a ‘sex offender'”)). He named Defendants and the Director of the City Department of Homeless Services (“DHS”). (Id. at 1). Mr. Porath requested $750,000.00 in compensatory damages and an order directing that he “be assigned [a] different parole” officer and enjoining Defendants from engaging in “any type of retaliation[.]” (Id. at 5). When he filed the Complaint, Mr. Porath was incarcerated on Rikers Island. (Id. at 2). On February 16, 2022, the Court granted Mr. Porath's request to proceed in forma pauperis. (ECF No. 4).
On March 7, 2022, the Honorable John P. Cronan dismissed Mr. Porath's claims against DHS and directed the U.S. Marshals Service (“USMS”) to effect service of the Summons and Complaint on Defendants. (ECF No. 6). On April 4, 2022, Judge Cronan referred the matter to the undersigned for general pretrial supervision and all dispositive motions. (ECF No. 13).
On April 14, 2022, before the Complaint had been served, Mr. Porath filed the Amended Complaint (ECF No. 14), the factual allegations of which largely mirror those in the Complaint. (Compare ECF No. 2 at 4-5 with ECF No. 14 at 1-5). Similar to the Complaint, Mr. Porath alleges that he “brings this [Section] 1983 [action] before the Court for defamation [of] character, slander, false accusations, and failing to correct a wrong under the 14th Amendment of the United States Constitution[.]” (ECF No. 14 at 1). He also repeats his demand for $750,000.00 in compensatory damages for “defamation for charact[er], pain and suffering, and slander,” and for an order directing that he be assigned a new parole officer and prohibiting “any type of retaliation” by Defendants. (Id. at 7). In support of his requested injunctive relief, Mr. Porath alleged that he was to “be released back on parole on or about” June 29, 2022 and assigned to Officer Akaneme. (Id. at 8).
On May 10, 2022, Mr. Porath filed a letter advising that he had been transferred to the Governeur Correctional Facility (“Governeur”). (ECF No. 17). On May 20, 2022, the Court directed the USMS to effect service of the Summons and Amended Complaint on Defendants. (ECF No. 18).
On June 6, 2022, the USMS filed a Process Receipt and Return reflecting that it served the City with the Summons and Complaint-not the Amended Complaint-on May 26, 2022. (ECF No. 20). After the City appeared, the Court granted the City's request to be relieved of the obligation to respond to the Complaint and asked the City to waive service of the Amended Complaint. (ECF No. 22 (the “June 30 Order”)). The June 30 Order was mailed to Mr. Porath at Governeur. (Id.; see ECF min. entry July 1, 2022). On July 8, 2022, the City waived service of the Summons and Amended Complaint, making its response due by September 6, 2022. (ECF No. 24).
On July 18, 2022, the June 30 Order was returned as undeliverable, with a note indicating Mr. Porath was no longer at Governeur. (ECF min. entry July 18, 2022). On September 14, 2022, the City advised the Court that Mr. Porath “was released from State custody on June 29, 2022[,]” and requested an order directing Mr. Porath to update his address and adjourning the deadline for the City and Bellevue respond to the Amended Complaint. (ECF No. 25). On September 16, 2022, the Court granted the City's request, directed Mr. Porath to update his address by October 17, 2022, and adjourned all Defendants' answer deadline to 30 days after Mr. Porath updated his address. (ECF No. 26). On October 5, 2022, Officer Akaneme appeared, and the Court similarly extended his deadline to respond to the Amended Complaint. (ECF Nos. 29; 31). On November 22, 2022, having received no communication from Mr. Porath, the Court recommended that the Amended Complaint be dismissed without prejudice for failure to prosecute. (ECF No. 33 (the “R&R”)).
On January 5, 2023, Mr. Porath filed a letter stating, inter alia, that he “has had ‘no address'” since July 2022. (ECF No. 36 at 1). Mr. Porath explained that, following his release on June 29, 2022, he “reported to parole as instructed,” was assigned to Officer Akaneme and directed to go to Bellevue, and again “was told at [B]ellevue [that he] was still listed as a sex offender.” (Id.) Mr. Porath stated that he “instantly felt let down and severely disappointed, and stopped reporting and was living on the streets.” (Id.) On November 14, 2022, Mr. Porath “was picked up on a parole warrant . . . for absconding for 5 months.” (Id. at 3). Mr. Porath also stated that “New York Parole Officer Ms. Felix” (“Officer Felix”) had informed him that “Senior Parole Officer O'Neil-Greene” (“Officer O'Neil-Greene”) had “corrected the grave error.” (Id. at 3). Mr. Porath asked that Officers Felix and O'Neil-Greene be “added to [the] Complaint” for their involvement in correcting the Misclassification. (Id.)
On January 26, 2023, Judge Cronan ruled that, “[i]n light of that change in circumstances, paired with the fact that [Mr. Porath] is proceeding pro se, the Court will allow this case to proceed and not adopt the [R&R].” (ECF No. 39). On February 21, 2023, Mr. Porath filed a letter (i) advising the Court that he was transferred to the Vernon C. Bain Correctional Center, (ii) requesting that Officers Felix and O'Neil-Greene be added as Defendants based on their involvement in correcting the Misclassification, and (iii) requesting permission to serve interrogatories on or takes depositions of Defendants. (ECF No. 40). On February 23, 2023, the Court denied without prejudice Mr. Porath's request for discovery and directed Defendants to respond to the Amended Complaint by March 9, 2023. (ECF No. 41).
On February 28, 2023, Officer Akaneme filed a letter advising the Court of the grounds on which he intended to file a motion to dismiss the Amended Complaint. (ECF No. 42). On March 1, 2023, the Court directed the City Defendants to advise by March 9, 2023 whether they also intended to move to dismiss and, if so, to set forth the bases of their intended motion. (ECF No. 43). On March 16, 2023, following an extension at their request (ECF No. 50), the City Defendants filed a letter setting forth the bases on which they intended to move to dismiss the Amended Complaint. (ECF No. 54).
On March 22, 2023, the Court directed Mr. Porath to file a letter stating whether he intended to stand on his Amended Complaint or sought permission to file a second amended complaint addressing the deficiencies Defendants raised in their letters. (ECF No. 55). In a letter mailed on April 3, 2023 and docketed on April 11, 2023, Mr. Porath advised the Court that he “stands by his [] Amended Complaint and states that [there] are no deficiencies.” (ECF No. 58 at 1). Accordingly, the Court directed Defendants to file the Motions by June 2, 2023 and directed Mr. Porath file his opposition by July 7, 2023. (ECF No. 60). The Court warned Mr. Porath that his “failure to oppose the Motions will result in the Court ruling on the Motions based on Defendants' submissions alone and may result in dismissal of this action with prejudice.” (Id. at 1).
On June 2, 2023, Defendants filed the Motions. (ECF Nos. 61; 63). On July 20, 2023, having received no opposition or other communication from Mr. Porath, the Court sua sponte extended Mr. Porath's opposition deadline to August 9, 2023. (ECF No. 67 (the “July 20 Order”)). The Court again warned Mr. Porath that his failure to oppose “will result in the Court ruling on the Motions based on Defendants' submissions alone and may result in of the Court granting the Motions and dismissing this action with prejudice.” (Id. at 1). On August 21, 2023, having still received no opposition or other communication from Mr. Porath, the Court deemed the Motions fully briefed. (ECF No. 72 (the “Aug. 21 Order”)).
On September 5, 2023, the July 20 Order was returned to the Court as “Refused.” (ECF min. entry Sept. 5, 2023). On September 18, 2023, the Aug. 21 Order was returned to the Court, with the notation “Return to Sender.” (ECF min. entry Sept. 18, 2023).
III. DISCUSSION
A. Legal Standard for Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Ent., 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“In applying this standard, a court accepts as true all well-pled factual allegations but does not credit ‘mere conclusory statements' or ‘[t]hreadbare recitals of the elements of a cause of action.'” Gottesfeld v. Anderson, No. 18 Civ. 10836 (PGG), 2020 WL 1082590, at *4 (S.D.N.Y. Mar. 6, 2020) (quoting Iqbal, 556 U.S. at 678). The Court shall not give “effect to legal conclusions couched as factual allegations.” Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007). “Where a court can infer no more than the mere possibility of misconduct from the factual averments-in other words, where the well-pled allegations of a complaint have not ‘nudged [plaintiff's] claims across the line from conceivable to plausible'-dismissal is appropriate.” Gottesfeld, 2020 WL 1082590, at *4 (quoting Twombly, 550 U.S. at 570).
“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). “In deciding a motion to dismiss a pro se complaint, . . . it is appropriate to consider ‘materials outside the complaint to the extent that they are consistent with the allegations in the complaint[.]'” Lopez v. Cipolini, 136 F.Supp.3d 570, 579 (S.D.N.Y. 2015) (quoting Alsaifullah v. Furco, No. 12 Civ. 2907 (ER), 2013 WL 3972514, at *4 n. 3 (S.D.N.Y.2013)); see Evans v. City of New York, No. 21 Civ. 8660 (JPC), 2022 WL 1172740, at *1 n.1 (S.D.N.Y. Apr. 20, 2022); Velazquez v. Gerbing, No. 18 Civ. 8800 (KMK), 2020 WL 777907, at *6 (S.D.N.Y. Feb. 18, 2020).
B. Pro Se Considerations
“The Court must construe pro se submissions ‘liberally' and interpret them ‘to raise the strongest arguments that they suggest.'” Evans v. City of New York, No. 21 Civ. 8660 (JPC), 2022 WL 1172740, at *2 (S.D.N.Y. Apr. 20, 2022) (quoting Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020)). Nonetheless, “a pro se plaintiff must still plead enough facts to state a claim to relief that is plausible on its face.” Gottesfeld, 2020 WL 1082590, at *5. Despite the Court's obligation “to draw the most favorable inferences” from a complaint, it “cannot invent factual allegations that [the plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). “The Court need not accept allegations that are ‘contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint.'” Tsinberg v. City of New York, No. 20 Civ. 749 (PAE), 2021 WL 1146942, at *4 (S.D.N.Y. Mar. 25, 2021) (quoting Fisk v. Letterman, 401 F.Supp.2d 362, 368 (S.D.N.Y. 2005)).
C. Application
In Mr. Porath's words, he brings this action under Section 1983 “for defamation [of] charact[e]r, slander, false accusations, and failing to correct a wrong, under the 14th Amendment of the United States Constitution.” (ECF No. 14 at 1). The Court construes the Amended Complaint as asserting Section 1983 claims for alleged violations of the U.S. Constitution including: (i) violations of Mr. Porath's right to procedural due process under the Fourteenth Amendment (the “Procedural Due Process Claims”); (ii) violations of Mr. Porath's right to substantive due process under the Fourteenth Amendment (the “Substantive Due Process Claims,” with the Procedural Due Process Claims, the “Due Process Claims”);(iii) false arrest in violation of Fourth Amendment (the “False Arrest Claims”); and (iv) malicious prosecution in violation of the Fourth Amendment (the “Malicious Prosecution Claims,” with the Due Process and False Arrest Claims, the “Section 1983 Claims”). The Court also construes the Amended Complaint as asserting claims for (i) violations of the analogous provisions of the New York State Constitution, i.e., procedural due process, substantive due process, false arrest, and malicious prosecution; (ii) defamation; and (iii) negligence (collectively, the “State Law Claims”).
“Because [Mr. Porath] was a parolee at the time of the alleged constitutional violation, his claim[s are] appropriately analyzed under the Fourteenth Amendment's Due Process Clause, not the Eighth Amendment.” Stovall v. Wilkins, No. 15 Civ. 2163 (KMK), 2016 WL 5478509, at *3 (S.D.N.Y. Sept. 29, 2016).
Defendants seek dismissal of the Amended Complaint in its entirety. (See ECF Nos. 62; 64). Because the Section 1983 Claims serve as the basis for the Court's subject-matter jurisdiction over this action, the Court analyzes them first. As discussed below, the Court finds that Mr. Porath has failed to allege a plausible Section 1983 Claim. Accordingly, the Court respectfully recommends that the Section 1983 Claims be dismissed without prejudice and with leave to amend, and that the Court decline to exercise supplemental jurisdiction over the State Law Claims unless and until Mr. Porath can allege a plausible claim under Section 1983.
1. Section 1983 Claims
Section 1983 imposes liability on a “person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. “Section 1983 is not itself a source of substantive rights,” and instead “merely provides a method for vindicating federal rights elsewhere conferred,” e.g., the Constitution. Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under Section 1983, a plaintiff must plausibly allege “(1) that the defendants deprived him of a right ‘secured by the Constitution or laws of the United States'; and (2) that they did so ‘under color of state law.'” Giordano v. City of New York, 274 F.3d 740, 750 (2d Cir. 2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). In addition, “[i]t is well settled in th[e] [Second] Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” D'Angelo v. Annucci, No. 16 Civ. 6459 (KMK), 2017 WL 6514692, at *4 (S.D.N.Y. Dec. 19, 2017) (quoting Brown v. City of New York, No. 13 Civ. 6912 (TPG), 2017 WL 1390678, at *6 (S.D.N.Y. Apr. 17, 2017)); see Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).
The Court now considers each of Mr. Porath's Due Process Claims, False Arrest Claims, and Malicious Prosecution Claims.
a. Due Process Claims
Pursuant to the Due Process Clause of the Fourteenth Amendment, “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. “The Due Process Clause protects ‘the individual against arbitrary action of government.'” Velazquez v. Gerbing, No. 18 Civ. 8800 (KMK), 2020 WL 777907, at *9 (S.D.N.Y. Feb. 18, 2020) (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)).
As discussed above, construing his Amended Complaint broadly, Mr. Porath's Due Process Claims include the Procedural Due Process Claims and the Substantive Due Process Claims.
i. Procedural Due Process Claim
Mr. Porath alleges that, in failing to correct the Misclassification, Defendants violated his right “to be free from being falsely accused and identified as a ‘sex offender.'” (ECF No. 14 at 5). Construing the claim under a “stigma plus” theory, Officer Akaneme argues that Mr. Porath's Procedural Due Process Claims fail because, inter alia, the Misclassification was not publicized and, in any event, “any rights were sufficiently protected by New York State Article 78 proceedings.” (ECF No. 64 at 17-18).
a) Legal Standard
“A court examining a procedural due process claim under the Fourteenth Amendment ‘first asks whether there exists a liberty or property interest which has been interfered with by the State; [and] second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.'” Filteau v. Prudenti, 161 F.Supp.3d 284, 290 (S.D.N.Y. 2016) (quoting Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994)). “Therefore, to survive a motion to dismiss, a due process claim under § 1983 must allege, inter alia, ‘the deprivation of a constitutionally protected interest.'” Id. (quoting Abramson v. Pataki, 278 F.3d 93, 99 (2d Cir.2002)).
With respect to the first element, Mr. Porath alleges that he “has suffered a loss of liberty in the [sense] that [Officer Akaneme] and Bellevue have refused to correct” the Misclassification, which he describes as “defamation of character,” and claims that he “has a right to be free from being falsely [accused] and identified as a ‘sex offender'” in Bellevue's computer system. (ECF No. 14 at 4-5). While Mr. Porath appears to be alleging that that Defendants deprived him of his liberty interest in his good reputation, it is well-settled that “[a] person's interest in his or her good reputation alone, apart from a more tangible interest, is not a liberty or property interest sufficient to invoke the procedural protections of the Due Process Clause or create a cause of action under § 1983.” Patterson v. City of Utica, 370 F.3d 322, 329-30 (2d Cir. 2004). “Rather, loss of a person's reputation can rise to the level of a due process violation ‘if that loss is coupled with the deprivation of a more tangible interest'; such a claim ‘is commonly referred to as a ‘stigma-plus' claim.'” Filteau, 161 F.Supp.3d at 290 (quoting Patterson, 379 F.3d at 330).
To establish a “stigma plus” claim, then, Mr. Porath must allege: “(1) ‘the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false,' and (2) ‘a material state-imposed burden or state-imposed alteration of the plaintiff's status or rights.'” Vega v. Lantz, 596 F.3d 77, 81 (2d Cir.2010) (quoting Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir.2004)). “The statement must [] be ‘publicized.'” Filteau, 161 F.Supp.3d at 291 (quoting Abramson, 278 F.3d at 102). “[I]n ascertaining whether a complaint alleges the deprivation of a stigma-plus liberty interest, [the Court] need only determine that both ‘stigma' and ‘plus' are claimed to be sufficiently proximate.” Velez v. Levy, 401 F.3d 75, 89 (2d Cir. 2005). “This requirement will be satisfied where (1) the stigma and plus would, to a reasonable observer, appear connected-for example, due to their order of occurrence or their origin-and (2) the actor imposing the plus adopted (explicitly or implicitly) those statements in doing so.” Id. “There is no rigid requirement, therefore, that both the ‘stigma' and the ‘plus' must issue from the same government actor or at the same time.” Id. Finally, “the availability of adequate process defeats a stigma-plus claim.” Segal v. City of New York, 459 F.3d 207, 213 (2d Cir. 2006) (“Like any procedural due process claim, a stigma-plus claim enforces a limited but important right: the right to be heard ‘at a meaningful time and in a meaningful manner.'” (quoting Goldberg v. Kelly, 397 U.S. 254, 267, (1970)).
b) Application
The Court finds that Mr. Porath has failed to allege a Procedural Due Process Claim based on a stigma plus theory for three reasons. First, although the Second Circuit has held that “wrongly classifying an inmate as a sex offender may have a stigmatizing effect which implicates a constitutional liberty interest[,]” Vega, 596 F.3d at 81-82, Mr. Porath has failed to allege that any Defendant publicized the Misclassification, which, according to Mr. Porath, appeared only within Bellevue's computer system. (See ECF No. 14 at 5 (Mr. Porath alleging that he “has a right to be free from being falsely [accused] and identified as a ‘sex offender' (only on Bellevue['s] comput[e]r syst[e]m)[.]”)). “Without the element of publication, there is no potential for the stigmatizing information to harm [Mr. Porath's] reputation in the community.” Nuttle v. Ponton, 544 F.Supp.2d 175, 177 (W.D.N.Y. 2008) (granting motion to dismiss stigma plus claim by student against university officials based on statement by professor to the university's Director Judicial Affairs, where the student “fail[ed] to allege that Defendants publicized the [professor's statements] or disseminated the stigmatizing information outside of [the university]”); see White v. City of New York, No. 13 Civ. 7156 (ER), 2014 WL 4357466, at *13 (S.D.N.Y. Sept. 3, 2014) (granting motion to dismiss stigma plus claim where plaintiff failed to allege facts indicating that the allegedly stigmatizing remarks were publicized).
Second, even if Mr. Porath alleged that Defendants had publicized the Misclassification, he has failed to plausibly allege a causal connection between any publication and the alleged “plus,” i.e., his subsequent incarceration for parole violations. Mr. Porath alleges that he “suffered [four] parole violations” for “refusing to comply with parole to go to Bellevue/Swarts Island as a sex offender[.]” (ECF No. 14 at 5, 7). These allegations, however, are purely conclusory, and fail to specify the nature of Mr. Porath's parole revocation, much less plausibly suggest that the Misclassification and Mr. Porath's subsequent incarceration for parole violations are “sufficiently proximate.” Velez, 401 F.3d at 89. He fails to allege, for example, that in revoking his parole, Officer Akaneme “adopted (explicitly or implicitly)” the Misclassification. Id. Indeed, to the contrary, Mr. Porath's allegations suggest that his incarceration was the result of his failure to comply with the parole condition that he find housing, which, he acknowledges, was available to him at Schwartz regardless of the Misclassification, but for his refusal to go there. (See ECF No. 14 at 3 (Mr. Porath alleging that he incurred four “violations of incarceration [for] not going somewhere as a sex offender as directed”); see also ECF No. 36 at 1, 3 (Mr. Porath alleging that, after he “was told at [B]ellevue [that he] was still listed as a sex offender” following his release on June 29, 2022, he “instantly felt let down and severely disappointed, and stopped reporting and was living on the streets” and subsequently “was picked up on a parole warrant . . . for absconding for 5 months”)). In other words, Mr. Porath does not allege that Officer Akaneme revoked his parole because of the Misclassification, and his allegations suggest that Officer Akaneme would not have initiated revocation proceedings if he had gone to Schwartz. Thus, although despite construing Mr. Porath's allegations liberally, the Court cannot conclude that those allegations would plausibly lead “a reasonable observer” to find that Mr. Porath's incarceration was sufficiently “connected” to the Misclassification, particularly where Officer Akaneme-i.e., “the actor imposing the plus”-was not the source of the Misclassification. Velez, 401 F.3d at 89 (2d Cir. 2005); cf. Anemone v. Metro. Transp. Auth., 410 F.Supp.2d 255, 270 (S.D.N.Y. 2006) (“Although inflicted by different actors, the ‘stigma' and the ‘plus' constitute a liberty interest deprivation because the MTA's act of termination implicitly adopted Sansverie's stigmatizing allegations and would appear, to anyone who had read of the allegations, to be connected to them.”).
Mr. Porath cannot premise his Procedural Due Process Claim on Bellevue's decision to deny him entry based on the Misclassification, because “he does not have a property right to placement in a particular type of shelter under New York law.” Jenkins v. New York City Dep't of Homeless Servs., 643 F.Supp.2d 507, 512 (S.D.N.Y. 2009) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)).
Third and finally, even if Mr. Porath had alleged both that Defendants publicized the Misclassification and a plausible causal connection between the Misclassification and his incarceration, he does not allege a Procedural Due Process Claim because he “has failed to allege any facts demonstrating that under New York law, he was not afforded all of the process he was due.” Joseph v. Castillo, No. 20 Civ. 3957 (PKC) (JRC), 2022 WL 4485061, at *4 (E.D.N.Y. Sept. 27, 2022). Mr. Porath “does not allege that he was deprived of due process based on established state procedures, but based on random, unauthorized acts by” Defendants in failing to correct the Misclassification. Id. (finding parolee plaintiff's allegations against defendant parole officer that “consist[ed] of lies, threats, arbitrarily ‘reject[ing] every address' proposed by Plaintiff, and intentionally ‘leav[ing] [Plaintiff] in prison' to be “random, unauthorized acts). (See ECF No. 14 at 4 (Mr. Porath alleging that both Bellevue and Officer Akaneme “refused to correct” the Misclassification)). “[A] government official's random and unauthorized act does not violate due process if a meaningful post-deprivation remedy is available; when the government cannot predict precisely when the loss will occur, it would be impossible to provide a meaningful hearing before the deprivation of property.” Newman v. de Blasio, No. 21 Civ. 6141 (LTS), 2021 WL 4254978, at *4 (S.D.N.Y. Sept. 17, 2021). “If a government official within New York State has failed to act with regard to a litigant's property or liberty interest, courts have held that the process in which to compel that government official to take action is a state-court proceeding for mandamus relief under Article 78 of the New York Civil Practice Law and Rules.” Id. (collecting cases).
Here, Mr. Porath fails to allege “that habeas and Article 78 proceedings were inaccessible to [him] to challenge [Defendants'] allegedly random and unauthorized acts[.]” Joseph, 2022 WL 4485061, at *4. He fails to allege, for example, any facts “showing lack of an available judicial proceeding to force a government official to [correct the Misclassification] (such as an Article 78 proceeding) or why such a proceeding is inadequate.” Newman, 2021 WL 4254978, at *5. As a result, he “fails to establish ‘that no meaningful remedy was available subsequent to [his] liberty deprivation.” Joseph, 2022 WL 4485061, at *4 (quoting Peterson v. Tomaselli, 469 F.Supp.2d 146, 165-66 (S.D.N.Y. 2007) (rejecting a procedural due process claim because “[p]laintiff could have initiated either an Article 78 proceeding or a state habeas proceeding to adjudicate his claim regarding his release date”)); see West v. City of New York, No. 23 Civ. 2256 (LTS), 2023 WL 3728374, at *4 (S.D.N.Y. May 30, 2023) (“Plaintiff's allegations seem to suggest that a state employee caused an erroneous notation to be made in the records of her Housing Court proceedings. Post-deprivation remedies in the state courts were available to her to vindicate her rights following such an act, and these allegations thus do not state a claim that her right to procedural due process was violated.”); Moore v. Newton, 220 F.Supp.3d 275, 295 (E.D.N.Y. 2016) (finding that a parole officer's “failure to intervene to secure [P]laintiff's release [was] . . . a ‘random, unauthorized act' for which the availability of a post-deprivation remedy such as an Article 78 or habeas proceeding under state law would [satisfy due process].”); Schultz v. Egan, 103 Fed.Appx. 437, 441 (2d Cir. 2004) (“[T]he availability of an Article 78 proceeding or a habeas proceeding would almost certainly suffice to satisfy the due process clause.”).
Accordingly, the Court finds that Mr. Porath has failed to allege a plausible Procedural Due Process Claim.
ii. Substantive Due Process Claim
Mr. Porath alleges that, in failing to correct the Misclassification “even after [being] told and shown [that] what they were doing was wrong[,]” Defendants were “deliberate[ly] indifferen[t]” to and “reckless[ly] disregard[ed] . . . a loss of liberty and defamation of charact[e]r.” (ECF No. 14 at 6). Defendants argue that these allegations do not state a plausible Substantive Due Process Claim because, inter alia, Mr. Porath fails to allege that either Defendant (i) violated a duty owed to Mr. Porath, (ii) acted with deliberate indifference, or (iii) engaged in conduct that “shocks the conscience.” (ECF Nos. 62 at 17-20; 64 at 19-26).
a) Legal Standard
“Substantive due process is an outer limit on the legitimacy of governmental action,” Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999), and “protects against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is incorrect or ill-advised.” Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995). Accordingly, “[f]or a substantive due process claim to survive a Rule 12(b)(6) dismissal motion, it must allege governmental conduct that ‘is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'” Velez, 401 F.3d at 93 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)). “The Supreme Court has . . . cautioned that the Due Process Clause of the Constitution ‘does not transform every tort committed by a state actor into a constitutional violation.'” Correction Officers' Benevolent Ass'n, Inc. v. City of New York, No. 17 Civ. 2899 (LTS), 2018 WL 2435178, at *3 (S.D.N.Y. May 30, 2018) (quoting DeShaney v. Winnebago Cnty. Dep't of Soc. Serv., 489 U.S. 189, 202 (1989)). “A court must ‘screen[ ] out all but the most significant constitutional violations, lest the Constitution be demoted to a font of tort law.'” Id. (quoting Matican v. City of New York, 524 F.3d 151, 155 (2d Cir. 2008)).
“Generally, . . . the Due Process Clause ‘confer[s] no affirmative right to government aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.'” Stovall v. Wilkins, No. 15 Civ. 2163 (KMK), 2016 WL 5478509, at *3 (S.D.N.Y. Sept. 29, 2016) (quoting DeShaney, 489 U.S. at 196). “There are, however, two exceptions to this DeShaney rule[.]” Newman, 2021 WL 4254978, at *3. “First, the [government] or its agents may owe a constitutional obligation to the [plaintiff] . . . if the [government] ha[s] a ‘special relationship' with the [plaintiff]. Second, the [government] may owe such an obligation if its agents ‘in some way had assisted in creating or increasing the danger to the [plaintiff].'” Matican, 524 F.3d at 155. The Second Circuit has explained “that ‘special relationship' liability arises from the relationship between the state and a particular victim, whereas ‘state created danger' liability arises from the relationship between the state and the private assailant.” Pena v. DePrisco, 432 F.3d 98, 109 (2d Cir. 2005)
With respect to the special-relationship exception, the Second Circuit has held that “[a] parolee, although not in the state's physical custody, is nonetheless in its legal custody, and his or her freedom of movement, while not as restricted as that of an incarcerated prisoner, is nonetheless somewhat curtailed.” Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005). “Accordingly, because the limitations imposed by the state are minimal, so too are the duties it assumes.” Id. at 107.
“To succeed on a state-created danger substantive due process violation claim, a plaintiff must establish that the defendant caused the plaintiff to suffer harm through an affirmative action that was of such character as to shock the conscience.” Correction Officers' Benevolent Ass'n, 2018 WL 2435178, at *3 (citing Lombardi v. Whitman, 485 F.3d 73, 79, 81, 81 n.5 (2d Cir. 2007)). “A determination as to whether a state-sanctioned action shocks the conscience requires a careful evaluation of the particular circumstances of the case, including the nature of the state action, the magnitude and form of the harm inflicted on the plaintiff, and the state of mind of the defendants.” Id. “[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849. “Negligently inflicted harm, on the other hand, cannot, as a categorical matter, shock the conscience in a constitutional sense.” Correction Officers' Benevolent Ass'n, 2018 WL 2435178, at *3 (citing Lewis, 523 U.S. at 848-49). “Between intentionally and negligently inflicted harm lies injury caused through a defendant's deliberate indifference, a state of mind that, akin to recklessness, requires that a defendant knew of the risk and deliberately assumed or disregarded it.” Id. (citing Pena, 432 F.3d at 114). “Whether a defendant's deliberate indifference is sufficiently egregious to shock the conscience is dependent on the particular circumstances of the violative conduct, such as the nature of the government action and the harm inflicted.” Id. (citing Lewis, 523 U.S. at 850).
b) Application
The Court finds that Mr. Porath has failed to allege a plausible Substantive Due Process Claim for two reasons. First, he “has failed to allege sufficient facts to show, under either of the two above-referenced exceptions to the DeShaney rule, that a government official [was] required to provide him with aid or protection” by correcting the Misclassification. Newman, 2021 WL 4254978, at *3. Specifically, Mr. Porath fails to plausibly either that either Officer Akaneme or the City had a “special relationship” with him such that either was required to take action to correct the Misclassification. With respect to Officer Akaneme, although Mr. Porath's “status as a parolee required to report to” a homeless shelter “can be said to [create] a [limited] ‘special relationship' with the state” and “giv[e] rise to at least some duties on behalf of the state to protect [him],” Mr. Porath has failed to allege that this duty encompassed correcting the Misclassification within Bellevue's computer system, particularly where Mr. Porath acknowledges separate housing was available to him at Schwartz despite the Misclassification. Stovall, 2016 WL 5478509, at *3 (in granting motion to dismiss parolee's substantive due process claim against his parole officer, declining to find that the “minimal limitation-the need to report [to parole meetings]-could give rise to a duty as substantial as one that requires parole officers to ensure safe transit for parolees”); cf., Jacobs, 400 F.3d at 107 (finding that parolee stated Due Process claim where “the state effectively compelled him to live in unsafe conditions”).
Mr. Porath's allegations with respect to the City are even weaker, as he was not in City custody and has provided no legal authority-nor is the Court is aware of any-for the proposition that his limited interaction with Bellevue established a special relationship. See Barker v. Women in Need, Inc., No. 20 Civ. 2006 (LLS), 2020 WL 1922633, at *3 (S.D.N.Y. Apr. 20, 2020) (“There is no constitutional right to a well-run shelter system[,] . . . [a]nd the government has no obligation to provide adequate housing.”).
Similarly, Mr. Porath has failed to plausibly invoke the state created danger exception. He alleges that, in failing to correct the Misclassification “even after [being] told and shown [that] what they were doing was wrong[,]” Defendants were “deliberate[ly] indifferen[t]” to and “reckless[ly] disregard[ed] . . . a loss of liberty and defamation of charact[e]r.” (ECF No. 14 at 6). These allegations fail, however, to plausibly suggest that any Defendant “aid[ed]s and abet[ed] a private party in subjecting [Mr. Porath] to unwarranted physical harm.” Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998); see Brown v. City of New York, 786 Fed.Appx. 289, 292 (2d Cir. 2019) (affirming sua sponte dismissal of substantive due process claim where the plaintiff “failed to identify facts showing that merely assigning her to a new homeless shelter or assigning her to a room with other women encouraged acts of physical violence against her[, . . . that Defendants condoned or encouraged any violence against her[, . . . or] that the Defendants' inaction constituted an implicit ‘prior assurance' that violence against [her] would go unpunished”).
Second, even if Mr. Porath had plausibly alleged that Defendants owed him a duty to correct the Misclassification, the Court finds that Mr. Porath's Substantive Due Process Claim is deficient because he has not alleged that Defendants' conduct was “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Velez, 401 F.3d at 93. Again, the crux of Mr. Porath's allegations are that the Defendants failed to correct the Misclassification in Bellevue's computer system. (ECF No. 14 at 5-6). Even accepting these allegations as true, however, Mr. Porath has not alleged that Defendants' conduct rises to the level of a constitutional violation. He does not allege, for example, that the Misclassification, as unfortunate as it may be, deprived him of any housing within the City shelter system. To the contrary, he alleges that Defendants advised him to go to a different shelter, but he refused. (ECF No. 14 at 3, 7). As discussed above, Mr. Porath's own allegations suggest that it was this refusal-not the Misclassification-that led to his parole revocation. (See § III.C.1.a.i.b, supra). Accordingly, “even when read in the light most favorable to [Mr. Porath], nothing alleged in the Amended Complaint shocks the contemporary conscience, suggests egregious conduct, or constitutes a gross abuse of governmental authority.” TZ Manor, LLC v. Daines, 815 F.Supp.2d 726, 751 (S.D.N.Y. 2011) (dismiss substantive due process claim where “[t]here [was] absolutely nothing in the Amended Complaint that even suggest[ed] that the Defendants acted with the intent to injure Plaintiffs”), aff'd, 503 Fed.Appx. 82 (2d Cir. 2012); see Davis v. McCleary, No. 17 Civ. 659 (PKC), 2017 WL 2266856, at *5 (E.D.N.Y. May 23, 2017) (“Requiring a parolee to commute to drug treatments in an inconvenient location comes nowhere near the threshold of conduct that ‘shocks the conscience.'”); Stovall, 2016 WL 5478509, at *4 (finding that “[n]othing alleged in the Complaint shock[ed] the contemporary conscience, or [was] brutal or offense to human dignity . . . [where t]he Complaint merely allege[d] that Defendants required a parolee with a hard cast on his foot to attend a parole meeting roughly 10 miles away from his home,” even though the parolee provided defendants with a doctor's note stating that he was in no condition to travel); cf., Opperisano v. New York Dep't of Parole, No. 16 Civ. 3940 (MKB) (LB), 2017 WL 11504786, at *3-4 (E.D.N.Y. Jan. 25, 2017) (allowing substantive due process claim to proceed where parolee plaintiff alleged that “he was incarcerated for violating his parole after the Parole Officers permitted [him] to reside in locations that violated the order of protection.”).
Accordingly, the Court finds that Mr. Porath has failed to allege a plausible Substantive Due Process Claim.
b. False Arrest and Malicious Prosecution Claims
Mr. Porath appears to base the False Arrest and Malicious Prosecution Claims on the theory that the Misclassification led to his arrest and prosecution for parole violations. (ECF No. 14 at 4-5, 7). Defendants argue that these claims fail because, inter alia, Mr. Porath fails to allege that his parole revocation was not supported by probable cause. (ECF Nos. 62 at 21-23, 25; 64 at 27). Officer Akaneme also argues that these claims “are barred under the Heck doctrine.” (ECF No. 64 at 26).
Heck v. Humphrey, 512 U.S. 477 (1994).
i. Legal Standard
“To state a Section 1983 false arrest claim, a plaintiff must allege ‘that (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.'” Grytsyk v. Morales, 527 F.Supp.3d 639, 647 (S.D.N.Y. 2021) (quoting Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012)). “Thus, a plaintiff may not bring a false arrest claim if there was probable cause to arrest him for an offense.” Id. (citing Betts v. Shearman, 751 F.3d 78, 81 (2d Cir. 2014)).
“In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, and must establish the elements of a malicious prosecution claim under state law.” Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010). Accordingly, to state a malicious prosecution claim, Mr. Porath “must plead (1) the initiation or continuation of a criminal proceeding against him; (2) termination of the proceeding in his favor; (3) lack of probable cause for commencing the proceeding; (4) actual malice as a motivation for Defendants' actions; and (5) a sufficient post-arraignment liberty restraint to implicate his Fourth Amendment rights.” Grytsyk, 527 F.Supp.3d at 652-53 (citing McKay v. City of New York, 32 F.Supp.3d 499, 511 (S.D.N.Y. 2014)). “As lack of probable cause is an element of the tort, ‘the existence of probable cause is a complete defense to a claim of malicious prosecution.'” Cintron v. Weshner, No. 18 Civ. 1619 (RA), 2021 WL 1758804, at *3 (S.D.N.Y. May 4, 2021) (quoting Stansbury v. Wertman, 721 F.3d 84, 94-95 (2d Cir. 2013)).
In Heck, the Supreme Court held that “in order to recover damages for an alleged unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence was reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a court's issuance of a writ of habeas corpus.” 512 U.S. at 486-87. Pursuant to the rule announced in Heck, a plaintiff may not use § 1983 to seek damages if a judgment in his favor “‘would necessarily imply the invalidity' of a prior state or federal criminal conviction or sentence.” Cox v. Aversa, No. 18 Civ. 3898 (NSR), 2020 WL 815476, at *3 (S.D.N.Y. Feb. 19, 2020) (quoting Heck, 512 U.S. at 487).
ii. Application
a) No Clear Heck v. Humphrey Bar
The Court declines at this stage to determine that Heck bars Mr. Porath's False Arrest and Malicious Prosecution Claims for damages. As Officer Akaneme acknowledges, Mr. Porath's allegations are “unclear” as to whether he challenges the validity of his parole violations, and Officer Akaneme invokes Heck only because Mr. Porath “might be claiming that his parole revocations should be overturned[.]” (ECF No. 64 at 26). While the Court agrees that Mr. Porath's allegations are not clear on this point, it appears from his Amended Complaint that he does not, in fact, challenge the validity of his parole revocation. Indeed, as noted below (see § III.C.1.b.ii.b, infra), Mr. Porath appears to concede that he stopped complying with the conditions of his parole because he refused “to go to Bellevue/Swarts Island[.]” (Id. at 7). Accordingly, given both the ambiguity in Mr. Porath's allegations and the Court's obligations to construe those allegations liberally, the Court declines to infer that Mr. Porath's False Arrest and Malicious Prosecution Claims seek “necessarily [to] invalidate his conviction.” Hasan v. Onondaga Cnty., No. 18 Civ. 806 (GLS) (ATB), 2018 WL 4055296, at *7 (N.D.N.Y. Aug. 2, 2018) (finding Heck did not bar pro se plaintiff's false arrest claim), adopted by, 2018 WL 4054105 (N.D.N.Y. Aug. 24, 2018); see Covington v. City of New York, 171 F.3d 117, 123 (2d Cir. 1999) (“[A] wrongful arrest claim, like many Fourth Amendment claims, does not inevitably undermine a conviction because a plaintiff can wage a successful wrongful arrest claim and still have a perfectly valid conviction.”). Moreover, given that it is unclear whether Mr. Porath remains in State custody, Heck “likely . . . would not bar any . . . claims that [he] seeks to assert here, as ‘[t]he Heck bar to § 1983 actions . . . does not apply to former prisoners who are no longer in custody because only individuals in state or federal custody can petition for writs of habeas corpus to collaterally challenge their convictions.'” Hudson v. Cnty. of Dutchess, 51 F.Supp.3d 357, 375 (S.D.N.Y. 2014) (quoting Barmapov v. Barry, No. 09 Civ. 3390, 2011 WL 32371, at *3 (E.D.N.Y. Jan. 5, 2011)).
b) Failure to State a Claim
The Court finds, however, that Mr. Porath's False Arrest and Malicious Prosecution Claims are both deficient for the same reason-Mr. Porath has failed to allege a lack of probable cause for his arrest and prosecution for violating his parole conditions. In the Amended Complaint, Mr. Porath acknowledges that he was arrested and incarcerated for violating the conditions of his parole. (ECF No. 14 at 4, 7). Although Mr. Porath objects to his arrest and confinement, he does not deny that he committed the offenses to leading to his parole revocation. In fact, he concedes that he stopped complying with the conditions of his parole because he refused “to go to Bellevue/Swarts Island[.]” (Id. at 7). “As [Mr. Porath] does not allege any fact suggesting that the parole warrant was facially invalid, he fails to state claims for [false arrest] based on his . . . arrest pursuant to the parole warrant and subsequent confinement.” Lurch v. NYSDOCCS, No. 20 Civ. 3430 (LLS), 2020 WL 3173020, at *5 (S.D.N.Y. June 12, 2020); see Larocco v. Jackson, No. 10 Civ. 1651 (NGG) (LB), 2012 WL 760396, at *3 (E.D.N.Y. Mar. 8, 2012) (“As with [the [plaintiff]'s false arrest claim, his claim for malicious prosecution fails because [he] cannot show a lack of probable cause for commencing the criminal proceedings against him.”); see also Hadid v. City of New York, 730 Fed.Appx. 68, 71 (2d Cir. 2018) (affirming dismissal of malicious prosecution claims where “the affirmative defense of probable cause was apparent from the face of the complaint, which acknowledge[ed] that [the plaintiff] was indicted and convicted”).
2. Bellevue is Not a Proper Defendant
The City Defendants argue that “all claims against Bellevue should be dismissed” because “Bellevue is a non-suable entity.” (ECF No. 62 at 14). The Court agrees. See Medina v. New York State Div. of Parole, No. 20 Civ. 3763 (VSB), 2020 WL 3962011, at *2 (S.D.N.Y. July 12, 2020) (“The Court must dismiss Plaintiff's claims against the Bellevue Men's Shelter . . . because agencies of the City of New York . . . are not entities that can be sued.”).
Accordingly, the Court respectfully recommends that all of Mr. Porath's claims against Bellevue be dismissed
3. Monell Claim Against the City
The City argues that Mr. Porath fails to state a municipal liability claim, i.e., “that the City (or any of its agencies) has a municipal policy that caused any deprivations of his constitutional rights.” (ECF No. 62 at 16).
a. Legal Standard
“A plaintiff asserting a claim under 42 U.S.C. § 1983 must show that, ‘while acting under color of state law, Defendants deprived him of a federal constitutional or statutory right.'” Vasquez v. Cnty. of Rockland, No. 13 Civ. 5632 (SLC), 2020 WL 883514, at *6 (S.D.N.Y. Feb. 24, 2020) (quoting Blackson v. City of New York, No. 14 Civ. 462 (VEC), 2014 WL 6772256, at *2 (S.D.N.Y. Dec. 2, 2014)).
“To state a claim under section 1983 against a municipality such as the City of New York [or against an individual City employee sued in his or her official capacity], [the] Plaintiff must allege plausibly that the municipality itself, not merely one or more employees of the municipality, caused the violation of the plaintiff's rights.” Yi Sun v. N.Y.C. Police Dep't, No. 18 Civ. 11002 (LTS) (SN), 2020 WL 4530354, at *4 (S.D.N.Y. Aug. 6, 2020) (citing Connick v. Thompson, 563 U.S. 51, 60 (2011)); see Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978) (holding that municipalities cannot “be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort”). “Absent such a custom, policy, or usage, a municipality cannot be held liable on a respondeat superior basis for the tort of its employee.” Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012). “[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force' behind the injury alleged.” Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997).
A plaintiff may plead a policy or custom by alleging:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.Kucharczyk v. Westchester Cty., 95 F.Supp.3d 529, 538 (S.D.N.Y. 2015) (quoting Brandon v. City of New York, 705 F.Supp.2d 261, 276-77 (S.D.N.Y. 2010)). At the pleading stage, the plaintiff “need not prove these elements, but still must plead them sufficiently to make out a plausible claim for relief.” Id. at 540.
“[I]solated acts . . . by non-policymaking municipal employees are generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify municipal liability.” East Haven, 691 F.3d at 81; see City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional [] policy [] [that] can be attributed to a municipal policymaker.”). “On the other hand,” unconstitutional acts by non-policymaking employees may justify municipal liability if “they were done pursuant to municipal policy, or were sufficiently widespread and persistent to support a finding that they constituted a custom, policy, or usage of which supervisory authorities must have been aware, or if a municipal custom, policy, or usage would be inferred from deliberate indifference of supervisory officials to such abuses.” East Haven, 691 F.3d at 81. “A plaintiff alleging that [ ]he has been injured by the actions of a low-level municipal employee can establish municipal liability by showing that a policymaking official ordered or ratified the employee's actions-either expressly or tacitly.” Id.
“A municipal policymaking official's ‘deliberate indifference' to the unconstitutional actions, or risk of unconstitutional actions, of municipal employees can in certain circumstances satisfy the test for a municipal custom, policy, or usage that is actionable under [§] 1983.” East Haven, 691 F.3d at 81 (quoting Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 126, 127 n.8 (2d Cir. 2004)). “To state a claim for municipal liability based on failure to train, [a] Plaintiff therefore must allege facts which support an inference that the municipality failed to train its police officers, that it did so with deliberate indifference, and that the failure to train caused his constitutional injuries.” Triano v. Town of Harrison, N.Y., 895 F.Supp.2d 526, 540 (S.D.N.Y. 2012) (collecting cases). “‘[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Brown, 520 U.S. at 410. The Second Circuit has “held that demonstration of deliberate indifference requires a showing that the official made a conscious choice, and was not merely negligent.” East Haven, 691 F.3d at 81. A “Plaintiff must allege that the type of . . . misconduct at issue . . . was known to the [municipality], and not just that the [municipality]'s . . . officers engage in misconduct.” Triano, 895 F.Supp.2d at 539.
b. Application
The Court finds that, in addition to failing to allege an underlying Section 1983 Claim (see § III.C.1), Mr. Porath has failed to allege a claim for municipal liability against the City under Monell. Mr. Porath's allegations against the City are limited to the actions of an unidentified Bellevue employee who allegedly refused to correct the Misclassification. (ECF No. 14 at 3-5). Even if this conduct were sufficient to state a constitutional violation, Mr. Porath fails to allege any facts to plausibly suggest the existence of a City policy or custom that caused his constitutional injuries. Mr. Porath's reliance on his own, isolated interactions do not plausibly allege that this Bellevue employee acted pursuant to a City custom or policy. See Yi Sun, 2020 WL 4530354, at *5 (granting motion dismiss pro se plaintiff's Monell claim based on “isolated alleged misrepresentations by” non-policymaking municipal employees); Sulaymu-Bey v. City of New York, No. 17 Civ. 3563 (AMD) (SJB), 2019 WL 1434597, at *11 (E.D.N.Y. Mar. 29, 2019) (dismissing Monell claim under Rule 12(c) where the pro se plaintiffs made only conclusory allegations that the City had “customs and policies . . . of ignoring exculpatory evidence in its investigations and prosecutions”); Treadwell v. Cnty. of Putnam, No. 14 Civ. 10137 (KMK), 2016 WL 1268279, at *4 (S.D.N.Y. Mar. 30, 2016) (dismissing Monell claim based on “an isolated series of incidents between Plaintiff and [municipal] employees that was the cause of her alleged constitutional injuries”).
“The same standard applicable to Fed.R.Civ.P. 12(b)(6) motions to dismiss applies to Fed.R.Civ.P. 12(c) motions for judgment on the pleadings.” Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010).
To the extent Mr. Porath asserts the City's Monell liability under a failure-to-train theory, his claim fares no better. Again, his allegations relate only to a single incident of allegedly unconstitutional conduct, and thus are “not sufficient to support a claim for municipal liability.” Sulaymu-Bey, 2019 WL 1434597, at *11; see Connick, 563 U.S. at 62 (plaintiffs must establish “[a] pattern of similar constitutional violations by untrained employees . . . to demonstrate deliberate indifference for purposes of failure to train.”); Turner v. Correct Care Sols., No. 18 Civ. 3370 (VB), 2019 WL 1115857, at *13 (S.D.N.Y. Mar. 11, 2019) (granting motion to dismiss Monell claim and noting that, “to adequately plead a policy or custom under Monell, [a] plaintiff must plausibly allege similar incidents involving others.”); Triano, 895 F.Supp.2d at 532 (“[A] custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the municipality.”).
Accordingly, the Court finds that Mr. Porath's Section 1983 Claims against the City fail for the independent reason that he has not alleged a constitutional violation that resulted from a City custom or policy.
4. Absolute and Qualified Immunity
Officer Akaneme also argues that he is entitled to absolute immunity with respect to Mr. Porath's malicious prosecution claim and qualified immunity with respect to all of Mr. Porath's claims. (ECF No. 64 at 28-30). Having determined that Mr. Porath fails to state a Section 1983 Claim, however, the need not address at this time the more difficult questions of absolute and qualified immunity. See Steele-Warrick v. Microgenics Corp., No. 19 Civ. 6558 (FB) (VMS), 2023 WL 3081290, at *11 (E.D.N.Y. Apr. 26, 2023) (declining to address qualified immunity argument with respect to claims that were not plausibly alleged); DeMeo v. Koenigsmann, No. 11 Civ. 7099 (HBP), 2015 WL 1283660, at *18 (S.D.N.Y. Mar. 20, 2015) (“Because plaintiff has failed to state claims on which relief can be granted against Dr. Holder, I need not address the defendants' argument that he is entitled to qualified immunity.”); Smith v. Hochul, No. 13 Civ. 1106A (MAT), 2015 WL 1432644, at *5 (W.D.N.Y. Mar. 26, 2015) (“The Court need not decide, at this time, whether [probation officer defendants] are entitled to absolute immunity because the allegations set forth in the amended complaint fail to state a claim upon which relief can be granted and must be dismissed.”).
5. State Law Claims
A “district court may decline to exercise supplemental jurisdiction over a claim” once it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c). “Further, in the usual case in which all federal law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims.” Alexander v. JP Morgan Chase Bank, N.A., No. 19-CV-10811 (OTW), 2021 WL 1061833, at *5 (S.D.N.Y. Mar. 18, 2021) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
Having found that Mr. Porath fails to allege any claim over which the Court has original jurisdiction, I recommend that the Court decline “to exercise supplemental jurisdiction over [his] [S]tate [L]aw [C]laims unless [he] can properly allege a Section [1983] claim” in a second amended complaint. Alexander, 2021 WL 1061833, at *6. Accordingly, the Court recommends that the State Law Claims be dismissed without prejudice.
D. Leave to Amend
“Leave to amend should be ‘freely give[n] . . . when justice so requires.'” Trujillo v. City of New York, No. 14 Civ. 8501 (PGG) 2016 WL 10703308, at *21 (S.D.N.Y. Mar. 29, 2016) (quoting Fed.R.Civ.P. 15(a)(2)). The Second Circuit recognizes that “the ‘liberal spirit' of the Federal Rule of Civil Procedure 15 embodies a ‘strong preference for resolving disputes on the merits.'” Davis v. Goodwill Indus. of Greater N.Y. & N.J., Inc., No. 15 Civ. 7710 (ER), 2017 WL 1194686, at *14 (S.D.N.Y. Mar. 30, 2017) (quoting Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190-91 (2d Cir. 2015)). “[A] pro se complaint should not be dismissed without the Court's granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
“District courts ‘ha[ve] broad discretion in determining whether to grant leave to amend[.]'” Trujillo, 2016 WL 10703308, at *21 (quoting Gurary v. Winehouse, 235 F.3d 793, 801 (2d Cir. 2000)). Courts may deny leave to amend for “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008).
Given Mr. Porath's pro se status, the Court respectfully recommends that he be granted leave to amend those claims the Court has found were inadequately pled, i.e., his Section 1983 Claims against the City (including a claim for municipal liability against the City under Monell) and Officer Akaneme. The Court respectfully recommends that leave to amend be denied, however, as to his Section 1983 Claims against Bellevue, because “[t]he defects in these claims are not the result of ‘inadequate[ ] or inartful[ ]' pleading, and are not susceptible to cure.” Trujillo, 2016 WL 10703308, at *21 (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). Therefore, amendment of these claims would be futile.
IV. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that the Motions be GRANTED as follows:
a. Mr. Porath's claims against Bellevue be DISMISSED WITH PREJUDICE.
b. Mr. Porath's Section 1983 Claims against the City and Officer Akaneme be DISMISSED WITHOUT PREJUDICE and with leave to amend.
c. The Court decline to exercise supplemental jurisdiction over Mr. Porath's State Law Claims and that these claims be DISMISSED WITHOUT PREJUDICE subject to Mr. Porath's ability to state a plausible Section 1983 Claim in a second amended pleading.
Defendants shall promptly serve a copy of this Report and Recommendation on Mr. Porath, and file proof of service on the docket by December 22, 2023.
The Clerk of Court is respectfully to mail a copy of this Report and Recommendation to Mr. Porath.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Cronan.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Mr. Porath does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Defendants' counsel. See Local Civ. R. 7.2.